ASA examines meaning of 'Significant Quantity'

In Kellogg Europe Trading Ltd t/a Kellogg Company the Advertising Standards Authority upheld complaints on website content concerning health claims made for “All-Bran Prebiotic Oaty Clusters” .  It is of particular interest as the requirements for what may constitute a 'significant quantity' of a nutrient in order to make an authorised specific health claim for a food was examined.

Prebiotic and Gut Health Claims

The ASA considered a general, unfocussed reference to “prebiotic” would likely be a general health claim, which would then need to be accompanied by a relevant authorised specific health claim to comply with the Code.

The ad featured the claims “Prebiotic* goodness to fuel your gut” and “Prebiotic Oaty Clusters”. The ASA considered the term “prebiotic” when used with a reference to specific conditions or benefits would likely be a specific health claim, while a general, unfocussed reference to “prebiotic” would be more likely to be a general health claim.

The ASA considered the claims, as they appeared in the ad, suggested the product was good for overall gut health, and as such were general health claims.

‘Significant Quantity’

The claims were linked by asterisks to text that stated “Chicory root fibre contributes to normal bowel function by increasing stool frequency. All-Bran Prebiotic Oaty Clusters Original contains 5.4g chicory root fibre per serving, i.e. 45% of the required daily intake. Full beneficial effect is obtained with a daily intake of 12g chicory root fibre”. Kellogg’s indicated that was based on an authorised specific health claim relating to chicory inulin, and that it was intended to accompany the general health claims in the ad as required by the Code.

Article 5(1) of the 2006 Regulation stated the use of health claims was only permitted where, among other things: (1)(b)(i) the nutrient or other substance for which the claim was made was contained in the final product in a ‘significant quantity’ as defined in applicable enactments or, where such rules did not exist, in a quantity that would produce the nutritional or physiological effect claimed as established by generally accepted scientific evidence; and (1)(d) the quantity of the product that could reasonably be expected to be consumed provided a significant quantity of the nutrient or other substance to which the claim related, as defined in applicable enactments or, where such rules did not exist, a significant quantity that would produce the nutritional or physiological effect claimed as established by generally accepted scientific evidence.

Kellogg’s said that while what constituted a “significant quantity” of chicory inulin had not been defined in legislation, that term had been defined in Annex XIII of the 2011 Regulation as 15 percent of the NRV of specified vitamins supplied by 100 grams of a product. Kellogg’s product contained 45 percent of the required daily intake per 45 gram portion.

However, the ASA considered what constituted a “significant quantity” of chicory inulin had been defined with reference to Article 5(1)(b)(i) and (d) of the 2006 Regulation in the EFSA Opinion, which recommended the authorisation of the specific health claim. The Opinion had established that 12 grams of the product would produce the physiological effect. We considered that meant a “significant quantity” would be 12 grams of chicory inulin, and that quantity would have to be gained from a reasonable quantity of Kellogg’s product.

A box of Kellogg’s granola contained 380 grams of the product, and one 45 gram serving provided 5.4 grams of chicory inulin. That meant consumers would need to eat just over two portions of the granola per day to achieve the claimed health benefit.

The ad stated one portion of the cereal constituted 45 percent of the required daily intake of chicory inulin. However, the ASA noted the ad provided no guidance on where the remaining 6.6 grams of inulin could be found once 5.4 grams had been consumed from the granola. The ASA considered the level of consumption of the product required to achieve an intake of 12 grams and therefore the claimed health benefit was unreasonable, and the wording of the conditions of use for the claim, as well as wording of Article 5 of the 2006 Regulation, meant the specific health claim could only be used where the product(s) referred to in the ad contained at least 12 grams of chicory inulin in readily consumable form, unless further information was provided clearly and prominently to consumers regarding where they might realistically source the additional inulin necessary for the claimed health benefit.

The ASA therefore upheld the complaint

Implication of benefit to digestive health

The ASA considered the claim “helping support digestive health by increasing levels of important bacteria living in your gut, nourishing your gut microbiota” described a specific functionality by which digestive health was supported (the increased level of “important” bacteria in the gut).

The ASA understood it had not been established that increasing levels of certain bacteria in the gut was beneficial to digestive health. However, the implication in the claim, and as it would be understood by consumers, was that it was beneficial to digestive health. They therefore considered the claim was a specific health claim for the purposes of the Code. However, the ASA had not seen any evidence which demonstrated that claim was authorised on the GB NHC Register and therefore concluded it had breached the Code.